The distaste of the three-judge panel of the Ninth Circuit for immigration detention generally is apparent from the first line of its decision: "Every day in the United States, the government holds over 30,000 aliens in prison-like conditions while determining whether they should be removed from the country." As support for this rather conclusory statement, the circuit court cites "Facts and Statistics", a publication from ICE Enforcement and Removal Operations (ERO).

The Ninth Circuit used no introductory signal in the footnote following the aforementioned sentence, meaning that the material referenced either directly states the proposition, identifies the source of a direct quotation, or identifies the source referred to in the text.

A review of ERO's "Facts and Statistics" provides no reference to the "prison-like conditions" to which the Ninth Circuit alludes, however. In fact, that document uses the word "prison" exactly once: "Statistics for FY 2009 and later years include detainees released on their own recognizance and detainees in Bureau of Prisons facilities." (Emphasis added.) This refers to the Institutional Hearing Program (IHP). As the attorney general has described that program:

The IHP identifies removable criminal aliens who are inmates in federal correctional facilities, provides in-person and video teleconference (VTC) immigration removal proceedings, and removes the alien upon completion of sentence, rather than releasing the alien to an ICE detention facility or into the community for adjudication of status. Bringing an Immigration Judge to the inmate for a determination of removability, rather than vice versa, saves time and resources and speeds hearings.

This detention standard protects detainees, staff, contractors, volunteers and the community from harm, and contributes to orderly facility operations, by requiring a formal classification process for managing and separating detainees based on verifiable and documented data.

It continues:

"Classification" is a process of categorizing detainees as low, medium or high custody and housing them accordingly. Research has shown that discretionary decisions about custody classification are more objective and consistent when guided by a process that systematically uses verifiable and documented information, and scores those factors appropriately.

...

During the classification process, staff shall reference facts and other objective, credible evidence documented in the detainee's A-file, work-folders, ICE automated records systems, criminal history checks, or other objective sources of information. Relevant considerations include any current criminal offense(s), past criminal offense(s), escape(s), institutional disciplinary history, documented violent episode(s) and/or incident(s), medical information or a history of victimization. Personal opinion, including opinions based on profiling, familiarity or personal experience, may not be considered in detainee classification. Special consideration shall be given to any factor that would raise the risk of vulnerability, victimization or assault. Detainees who may be at risk of victimization or assault include, but are not limited to, persons with disabilities, persons who are transgender, elderly, pregnant, suffering from a serious medical or mental illness, and victims of torture, trafficking, abuse, or other crimes of violence. [Emphasis added.]

Returning to the court's decision, at issue in Preap was the proper interpretation of the mandatory-detention provisions in section 236(c) of the INA, which states:

Detention of Criminal Aliens.-

(1) Custody.-The Attorney General shall take into custody any alien who-

(A) is inadmissible by reason of having committed any offense covered in section 212(a)(2) ,

(B) is deportable by reason of having committed any offense covered in section 237(a)(2)(A)(ii), (A)(iii), (B), (C), or (D),

(C) is deportable under section 237(a)(2)(A)(i) on the basis of an offense for which the alien has been sentenced to a term of imprisonment of at least 1 year, or

(D) is inadmissible under section 212(a)(3)(B) or deportable under section 237(a)(4)(B), when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.

(2) Release.-The Attorney General may release an alien described in paragraph (1) only if the Attorney General decides pursuant to section 3521 of title 18, United States Code, that release of the alien from custody is necessary to provide protection to a witness, a potential witness, a person cooperating with an investigation into major criminal activity, or an immediate family member or close associate of a witness, potential witness, or person cooperating with such an investigation, and the alien satisfies the Attorney General that the alien will not pose a danger to the safety of other persons or of property and is likely to appear for any scheduled proceeding. A decision relating to such release shall take place in accordance with a procedure that considers the severity of the offense committed by the alien. [Emphasis added.]

The operative language at issue is highlighted above. As the circuit court stated:

Specifically, we must decide whether an alien must be detained without bond even if he has resettled into the community after release from criminal custody. If the answer is no, then the alien may still be detained, but he may seek release in a bond hearing under [section 236(a) of the INA] by showing that he poses neither a risk of flight nor a danger to the community.

The alien plaintiffs had argued that the phrase "when ... released" in section 236(c)(1) of the INA applied to section 236(c)(2) of the INA, "so that an alien must be held without bond only if taken into immigration custody promptly upon release from criminal custody for an enumerated offense." (Emphasis added.) In essence, they asserted that if ICE did not directly take custody of an alien when that alien was released from criminal custody for one of the offenses listed in section 236(c)(1) of the INA (or very shortly thereafter), the alien was not subject to mandatory detention, but could seek release under the general release provisions of section 236(a) of the INA.

By contrast, the government argued that an alien who committed any crime enumerated under section 236(c)(1) of the INA was subject to mandatory detention even if the alien was not detained as soon as he or she was released from criminal custody.

The Ninth Circuit admitted that five of its sister circuits had considered the issue, and that four had sided with the government's interpretation, albeit under different reasonings. It noted, however, that "the government's position has been rejected by most district courts to consider the question and ... by three of six judges sitting en banc in the First Circuit." The Ninth Circuit agreed with that latter decision:

The statute unambiguously imposes mandatory detention without bond only on those aliens taken by the AG into immigration custody "when [they are] released" from criminal custody. And because Congress's use of the word "when" conveys immediacy, we conclude that the immigration detention must occur promptly upon the aliens' release from criminal custody.

The plaintiffs in Preap had been released from criminal custody and were only arrested by immigration authorities "[y]ears later". Plaintiff Preap was a lawful permanent resident (LPR) who had two 2006 misdemeanor convictions for possession of marijuana, but was only taken into immigration custody at some unspecified point after being released for a simple battery conviction, a crime not covered by the mandatory detention provision. Plaintiff Padilla was an LPR with two drug convictions (from 1997 and 1999, respectively), as well as a 2002 conviction for owning a firearm with a prior felony conviction. He was taken into custody 11 years after finishing his sentence on that latter conviction. Plaintiff Magdaleno was an LPR with a 2000 conviction for owning a firearm with a prior (unspecified) felony conviction, as well as a 2000 conviction for simple possession of a controlled substance. He was taken into immigration custody more than five after his release from a six-month sentence on that latter charge.

In Matter of Rojas, the Board of Immigration Appeals (BIA), after reviewing the ordinary meaning of the language used in the mandatory detention provision and the overall statutory text, held:

The statute does direct the Attorney General to take custody of aliens immediately upon their release from criminal confinement. But Congress was not simply concerned with detaining and removing aliens coming directly out of criminal custody; it was concerned with detaining and removing all criminal aliens.

In sum, we discern that the statute as a whole is focused on the removal of criminal aliens in general, not just those coming into Service custody "when ... released" from criminal incarceration. The objectives and design of the statute as a whole are therefore not consistent with reading the "when released" clause as being part of the meaning of "an alien described in paragraph (1)," as that phrase is understood in section 236(c)(2) of the Act.

The Ninth Circuit found that the BIA's interpretation in Matter of Rojas "flouts [the] structure" of section 236 of the INA. It held:

[I]f the government fails to take an alien into custody according to [section 236(c)(1) of the INA], then it necessarily may do so only under the general detention provision of [section 236(a) of the INA], and we never reach the release restrictions in [section 236(c)(2) of the INA].

The circuit court focused much of its attention on the word "when" as used in section 236(c)(1) of the INA:

Of course, the word "when" has multiple dictionary definitions. But looking to context, which of these meanings is the intended one is clear. The word "when" used in a command such as this one requires prompt action. Consider a teacher's common instruction to stop writing when the exam ends. There is no doubt that such an instruction requires the student to immediately stop writing at the end of the exam period. Or as one district court noted, "if a wife tells her husband to pick up the kids when they finish school, implicit in this command ... is the expectation that the husband is waiting at the moment" school ends. ... Similarly, the use of the phrase "when ... released," when paired with the directive to detain, unambiguously requires detention with "some degree of immediacy."

Indeed, "[i]f Congress really meant for the duty in (c)(1) to take effect 'in the event of' or 'any time after' an alien's release from criminal custody, we would expect Congress to have said so, given that it spoke with just such directness elsewhere in the IIRIRA." ... But instead Congress chose words that signal an expectation of immediate action.

The court reasons that its interpretation "is consistent with Congress's purposes in enacting the mandatory detention — to address heightened risks of flight and dangerousness associated with aliens who commit certain crimes." It continues:

These purposes are ill-served when the critical link between criminal detention and immigration detention is broken and the alien is set free for long stretches of time. Congress's concerns over flight and dangerousness are most pronounced at the point when the criminal alien is released. Consequently, we can be certain that Congress did not intend to authorize delays in the detention of these criminal aliens. And correspondingly, without considering the aliens' conduct in any intervening period of freedom, it is impossible to conclude that the risks that once justified mandatory detention are still present.

There are two problems with this reasoning. First, it doesn't make any sense: If Congress considered an alien dangerous enough to detain on day one, there is no reason to believe that it stopped considering that alien dangerous because there was a delay in the alien's detention. Second, "not committing another serious crime" for some extended period of time does not erase the danger posed by an alien who has already committed one. This is reflected in the grounds for removal in the INA itself, which do not contain "statutes of limitations" for removability based on criminal offenses. "Not committing the first crime" is Congress's expectation for aliens in the United States, not "refraining from reoffending after committing a first dangerous offense."

Respectfully, the circuit court's interpretation of this provision is cramped, inapt, and divorced from Congress's plain intent in drafting it.

To the contrary of the circuit court's reasoning, it is plain from a review of the statute as a whole that in using the word "when", Congress was signaling that the mandatory detention provision in section 236(c) of the INA was not intended to apply until after the alien was released from criminal custody. Otherwise, if ICE were to take custody of an alien before the alien was "released" from criminal custody, the alien could avoid the criminal punishment for his or her actions by being taken into immigration custody.

The Attorney General shall take into custody any alien who [is described therein] when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.

It is obvious from simply reading the language in its totality that Congress intended for the aliens removable on the grounds listed to be detained after their criminal confinement was completed, regardless of whether those aliens were "released on parole, supervised release, or probation" and regardless of whether those aliens could again be arrested for such offenses, and only released under limited circumstances described in section 236(c)(2) of the INA. Immigration custody prior to release from criminal confinement is not authorized, and release from immigration custody is authorized only as specified in paragraph (2) therein.

Any other reading of this provision would lead to absurd results, as the BIA recognized in Matter of Rojas. Expanding on the BIA's reasoning there, imagine, for example, that the alien was released on a Sunday, but there was no ERO officer available to take the alien into custody until Monday. Under the Ninth Circuit's logic, the alien would be eligible for release under section 236(a) of the INA, regardless of the severity of the offense for which the alien was convicted. Going further, imagine that the alien was released at noon, but ERO failed to take the alien into custody until 1:00 PM. Again, under the Ninth Circuit's logic, the alien would not be subject to mandatory detention. Even more absurdly, imagine that the alien was released at noon, but no immigration officer took custody of the alien until 12:01 PM. That one minute of "freedom" would relieve the alien of the burden of mandatory detention under section 236(c) of the INA.

Curiously, however, the Ninth Circuit punts on this specific issue. It states:

[W]e are not suggesting that the mandate to detain "when ... released" necessarily requires detention to occur at the exact moment an alien leaves criminal custody. The plain meaning of "when ... released" in this context suggests that apprehension must occur with a reasonable degree of immediacy. Thus, depending on the circumstances of an individual case, an alien may be detained "when ... released" even if immigration authorities take a very short period of time to bring the alien into custody. [Emphasis added.]

Because the appeal under consideration by the circuit court did "not present the question exactly how quickly detention must occur to satisfy the 'when ... released' requirement," the court leaves the question open, notwithstanding the fact that its holding (1) would lead to the release of potentially dangerous aliens and (2) would lead to more costly litigation.

Moreover (as the BIA noted in interpreting a similar provision in Matter of Noble), the Ninth Circuit's interpretation would mean that any alien removable on terrorism grounds who had never previously been detained criminally could escape mandatory detention, because there would be no "release" of that alien, as could aliens who were convicted of, but never incarcerated for, crimes that would nonetheless render the alien removable on one of the specified grounds.

Critically, given the sanctuary policies in effect in California (and in particular SB 54), were the Ninth Circuit's decision to stand, many criminal aliens would, again, escape mandatory detention, despite Congress' clear direction in section 236(c) of the INA. As the legislative digest for SB 54 explains:

This bill would, among other things and subject to exceptions, prohibit state and local law enforcement agencies, including school police and security departments, from using money or personnel to investigate, interrogate, detain, detect, or arrest persons for immigration enforcement purposes, as specified, and would, subject to exceptions, proscribe other activities or conduct in connection with immigration enforcement by law enforcement agencies. ... The bill would require the Attorney General to publish guidance, audit criteria, and training recommendations regarding state and local law enforcement databases, for purposes of limiting the availability of information for immigration enforcement, as specified.

(1) Use agency or department moneys or personnel to investigate, interrogate, detain, detect, or arrest persons for immigration enforcement purposes, including any of the following:

(A) Inquiring into an individual's immigration status.

(B) Detaining an individual on the basis of a hold request.

(C) Providing information regarding a person's release date or responding to requests for notification by providing release dates or other information unless that information is available to the public, or is in response to a notification request from immigration authorities in accordance with Section 7282.5. Responses are never required, but are permitted under this subdivision, provided that they do not violate any local law or policy.

...

(4) Transfer an individual to immigration authorities unless authorized by a judicial warrant or judicial probable cause determination, or in accordance with Section 7282.5. [Emphasis added.]

A law enforcement official shall have discretion to cooperate with immigration authorities only if doing so would not violate any federal, state, or local law, or local policy, and where permitted by the California Values Act (Chapter 17.25 (commencing with Section 7284)). Additionally, the specific activities described in subparagraph (C) of paragraph (1) of subdivision (a) of, and in paragraph (4) of subdivision (a) of, Section 7284.6 shall only occur under the following circumstances:

(1) The individual has been convicted of a serious or violent felony identified in subdivision (c) of Section 1192.7 of, or subdivision (c) of Section 667.5 of, the Penal Code.

(2) The individual has been convicted of a felony punishable by imprisonment in the state prison.

(3) The individual has been convicted within the past five years of a misdemeanor for a crime that is punishable as either a misdemeanor or a felony for, or has been convicted within the last 15 years of a felony for, any of the following offenses:

(AD) Kidnapping, as specified in, but not limited to, Sections 207, 209, and 209.5 of the Penal Code.

(AE) A violation of subdivision (c) of Section 20001 of the Vehicle Code.

(4) The individual is a current registrant on the California Sex and Arson Registry.

(5) The individual has been convicted of a federal crime that meets the definition of an aggravated felony as set forth in subparagraphs (A) to (P), inclusive, of paragraph (43) of subsection (a) of Section 101 of the federal Immigration and Nationality Act (8 U.S.C. Sec. 1101), or is identified by the United States Department of Homeland Security's Immigration and Customs Enforcement as the subject of an outstanding federal felony arrest warrant.

(6) In no case shall cooperation occur pursuant to this section for individuals arrested, detained, or convicted of misdemeanors that were previously felonies, or were previously crimes punishable as either misdemeanors or felonies, prior to passage of the Safe Neighborhoods and Schools Act of 2014 as it amended the Penal Code. [Emphasis added.]

Even this provision is narrower that it appears, at least as it relates to immigration enforcement. First, notification of the release date of a criminal alien convicted of one of the offenses listed above (or transfer to immigration authorities of such an alien) by a law enforcement official is, by its terms, discretionary. Given California's stated distaste for such actions, one would question how often such discretion would be exercised.

There is no such thing as a judicial warrant in deportation proceedings. It just doesn't exist in law.

Warrants to arrest aliens in deportation proceedings are civil/administrative in nature, not judicial, and they are issued under the authority of the DHS secretary (authority was transferred from the attorney general by enactment of the Homeland Security Act of 2002; See 8 USC Section 1226). This isn't just a picky technical distinction; many jurisdictions have specifically laid out the demand for "judicial warrants" before they cooperate, as a way of insisting on the unattainable, thus ensuring that cooperation will never happen.

These provisions significantly limit the likelihood that ICE would receive notification that a removable criminal alien is to be released, or the likelihood that such a criminal alien would be transferred from state or local custody to immigration detention. If Preap were to stand, therefore, a significant number of criminal aliens whom Congress has directed be subject to mandatory detention would either never be detained, or would be able to seek discretionary release.

Not to read too much into the Supreme Court's decision in Rodriguez, however, the granting of certiorari in Preap, coupled with the Court's earlier decision, could be a strong signal to the Ninth Circuit that the Supreme Court expects a faithful, and reasonable, interpretation of the immigration laws of the United States, no matter what those circuit court judges believe that law should be.

The biggest problem, however, is the fact that the Supreme Court's ability to review decisions is extremely limited. By way of explanation, consider a football game. At any National Football League game, there are seven officials, and 22 players on the field at any time, 11 for each team. While the game is played upon a rectangular field, 360 feet in length and 160 feet in width, the number of officials allows any given one to keep a reasonable watch on the actions of a limited number of the players for fouls.

Now imagine that there were only one official for those 22 players. The number of holds, clips, trips, illegal shifts, offsides, encroachments, false starts, and even delays of games would increase exponentially. That is more or less the situation that exists in our federal court structure, where nine justices of the Supreme Court must correct the errors made by the judges of 13 courts of appeal. There are 24 active and 18 senior judges of the Court of Appeals for the Ninth Circuit alone, and they generally hear cases in three-judge panels. The Supreme Court's ability to ensure the faithfulness of each of those judges' decisions to the law is significantly circumscribed.

Nonetheless, any attempt by the Supreme Court to ensure that Congress' intentions are complied with is to be applauded. The Supreme Court can, and should, use this opportunity to emphasize the importance of fidelity to circuit-court interpretations of the INA.

The Center for Immigration Studies is an independent, non-partisan, non-profit research organization founded in 1985. It is the nation's only think tank devoted exclusively to research and policy analysis of the economic, social, demographic, fiscal, and other impacts of immigration on the United States.